2010May28 - Examining CAS Workers Outside of Court

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Testing affidavit material of child protection workers and witnesses of 10

Examining the evidence of child protection workersand other witnesses

May 28, 2010

In many cases parents find themselves up against affidavits and other legal documents from CAS

workers and other third party collateral witnesses which are full of exaggerations, hearsayevidence and in some cases, outright lies and fabrications. Child protection workers have beenfound to have committed perjury in their affidavits to the court. The problem in most cases isthat there is a bias in favour of the CAS by the courts and the statements of CAS workers is oftenconsidered by the court as being more credible than statements from the parents. Often, theCourts will just accept what CAS workers say as being truth and assume that workers arecredible just for the reason that they are workers for a child protection agency. In other words,many courts see CAS workers as being able to do no wrong. Unfortunately, lies and hearsay isused all the time in affidavits submitted to the court by CAS workers.

CAS agencies have come to know that most parents will run out of money and energy long before matters get to a trial, so workers have very little to fear of being cross examined under

Oath in a court trial. Being grilled by a competent person under Oath is a very traumaticexperience for most child protection workers. Lies and deception by CAS workers can quickly be uncovered with the right line of questions. Delaying cases until parents run out of money isthe main way in which CAS agencies keep their workers from being put on the stand. Few casesever make it to a real trial.

One way in which you may stop or minimize CAS involvement with your family at an earlystage of the game is to have the evidence in any affidavit “examined” before it goes before a judge at the next court hearing. “Examining” the materials means that you or your lawyer question the person who wrote an affidavit under oath just as if the person was on the stand incourt giving evidence under Oath in court. The important difference is that this examination is

done in a private setting outside of the Court. Just like in a court, a court reporter is present witha recording device and will make transcripts of the examination. The businesses which providethis private service to the public are called “verbatim reporting services” and are located in mostcommunities where courthouses are located.

Every person who is the subject of a court matter has the right to examine the material in theaffidavit of a CAS worker, but only ONCE. Before matters go before a judge, you have theright to have the person examined under Oath. Remember however, that only materials put before the court and the workers reliability and experience can be tested. Anyone who submitsan affidavit under Oath as part of the court record can be examined outside of the court in a private examination. Examinations can also be helpful because they help to reduce the court’s

time in the matter.

By putting a CAS worker on the stand under Oath and subjecting the worker to rigorousquestioning, you may be able to discredit the credibility of the CAS worker and put into questionthe worker’s testimony before your matter even appears before a judge. Having evidence testedmay substantially increase your chances of winning at your next court hearing and may evencause the CAS to want to settle matters before matters go to court as some of the evidence whichwas gathered during an examination may be embarrassing to the CAS agency.




CAS agencies do not like private examinations because it takes up a lot of resources and can beembarrassing for the agency. Not only does the worker have to take time off work to attend, thusincreasing the work load of other worker, but the CAS may feel compelled to have one of their lawyer attend with the worker. It can be very costly to the CAS to have to send a worker and a

lawyer to an examination, which could quite easily tie up an entire day. Worse than the financialcost to the CAS agency can be the embarrassment if the worker says the wrong thing under Oathor is caught in a lie. A CAS case against parents can literally be lost almost immediately if aworker is caught lying at an examination under Oath. A good line of questioning will do that.

The main down side to the process of examining witnesses is that it can be expensive for the person who requests the examination. Most parents cannot afford to do this and in most cases,Legal Aid will not fund this process although this could be argued as it would save court timeand possibly eliminate the need for a trial. . The party who requests for a CAS worker to betested under Oath usually pays the cost of this service and would also pay standard witness feesfor the CAS worker to attend the examination. The second down side is that this process is that

it can cause a delay in the date that matters return to court. It may take time to schedule anexamination and to get the involved parties together at the same time.

Examining a CAS worker’s affidavit can be done privately through the services of a companycommonly referred to as a verbatim reporting service. Verbatim service companies are in the business of providing court reporters and generally cost clients between $30 to $50 per hour plusthe charge to have the transcripts typed up. For example, if you were to cross examine a worker at a hearing which may take 4 hours, it might cost you $200 plus transcripts which could costanother couple hundred dollars if you order transcripts for the entire hearing. If you take your own recording device to the examination to supplement your notes, this may allow you to save a bit of money by allowing you to be selective about which sections of the transcripts you mayorder.

The examination

Having a CAS worker tested under Oath is a fairly easy and informal procedure. Once you haveconsent from the worker, you will book time at the firm which provides the reporting service.Just like court, all parties will show up at the verbatim reporting offices on the day of thescheduled appointment. Those involved will sit at a table which is usually in a small room. The person being examined sits on one side of the table and the party asking the questions sit on theother site of the table facing the witness. You or your lawyer will ask questions and the worker with the CAS will provide answers to your questions. The CAS agency will likely send alawyer with the worker to help ensure that the worker does not say anything which mayincriminate the worker or the agency.

Testing the material can often be very effective in getting a CAS agency to take a less adversarialmanner and to be fairer before things get out of control. CAS workers know that under Oath,they can be asked some very demanding questions about their experience and knowledge of thelaw and which can be very embarrassing if the right questions are put forth. CAS workersgenerally want easy, not difficult files to deal with and putting workers individually under examination under Oath will frighten most workers. What a worker says under Oath in a private




examination can ruin their career and often cause significant damage to the agency who theywork for.

How to find out where to have a person examined in your area

Call the courthouse in your local area to be directed to the closest service. They are usually

referred to as a verbatim reporting services. Don’t just accept the names give by court workersas many of those referred to are likely friends of court workers. Also check with lawyers in thearea and ask them and check the internet out as well. Call these services and check them out before deciding which one to choose.

Things to look for when selecting a verbatim reporting service

Check if they audiotape the testimony and if they can provide a copy of the actual audiotape or video tape after the testimony is finished.

Insist that they allow the use of your own tape recorder at the examination, even if theyrecord as well. Advise the owner of the reporting service that it is not your intention to use

the tape except for anything else other then using it for your own notes. Get a copy of the tape from the verbatim reporting service

Don’t use a service that does not record or does not allow you to record the testimony withyour own equipment.

Use a verbatim reporting service that allows videotaping (Optional)

Some of the verbatim reporting services do offer videotaping of the witness while beingexamined. SO BE SURE TO ASK if they provide this service as this is most valuable. Some of the services may tell you that such as service is not available anywhere in an effort to discourageyou from seeking services elsewhere, but some services do offer this if you check around to findone which does. Some services, although they might not provide their own videotaping servicethemselves, will allow the client to bring in their own contracted agent to videotape the witnesswhile their own court reporter does the audio recording. If you hire your own videotapingservice, it should be someone who does this professionally. It would not be acceptable to haverelatives or friends come in with their video equipment to record the examination of the witnessalthough it might be possible for you to do this on your own with your own home videoequipment.

Using videotape can be very powerful and be much more revealing than using just a courtreporter. Video captures the facial expressions of the person giving evidence under oath. For the extra cost, the thought that video will be used as part of the cross examination process, maycause a CAS worker to suddenly become more cooperative and work towards a solution in your

matter. Video can be very powerful in intimidating workers to be truthful.Remember that verbatim reporting services are private companies who want your business. Youare hiring them and paying for them to provide services. Generally, you can arrange for them to provide whatever reasonable services you wish but remember that they are in business to makean income off of transcripts. For instance, you may request for videotaped testimony initially butyou should expect to pay more if you want this without ordering written transcripts at the sametime.




Step by Step Procedure to have a children’s aid Society worker privatelyexamined under oathThe following are the steps to have a CAS worker privately examined. It is important tocarefully document each step

Step #1Send a letter by fax and by mail to the worker at the agency requesting their consent to beexamined under Oath. (see sample letter). Give the worker some time to respond. Be preparedfor a letter from the CAS agency’s lawyer. If the worker or the lawyer agrees to be examinedthen proceed directly to step #5. Be sure however, to get confirmation in writing, otherwise theworker is under no obligation to show up to the examination. If the worker does however agreeto show up for examination without being served a notice to appear, then you do not have to payfor witness fees.

Step #2

If you do not receive a response within a reasonable time frame (one week is reasonable) then

send a second follow up letter by fax (see sample). Be sure to ask them to call you by phone. If the worker agrees to be examined then proceed directly to step #5.

Step #3

If a response is not received within 48 hours then send one to the executive director of the CASasking him or her to have the issue dealt with. If consent is obtained to have the worker examined then proceed to step #5.

Step #4

If you do not hear within the next a reasonable period of time (1 week), then serve the child protection workers with a Form 34B (Summons to appear as witness for examination outside of court) form. At the time of printing of this document, Form 34B was available in both Word andPDF formats from the Ontario Attorney General’s office at the following website.

http://www.ontariocourtforms.on.ca/english/civil

Once completed, this document must be served in person on the CAS worker. Call the localcourthouse to obtain the current payment rates for witness and indicate this on the form. Thewitness will have to be paid when they attend the examination. Be sure to list all of thedocuments that you wish the worker to bring to the examination. These documents shouldinclude:

All CAS files including worker’s notesCopies of all legal documentsAny photographsAny video or audio recordings

Be sure to call the courthouse to obtain the latest witness fees and to mark them down on theform. You will have to pay the witnesses when they show up at the examination. The best way




is to have cash for the witnesses and to have a receipt ready for the worker to sign toacknowledge receipt of the money.

Once the worker has been served, then file the notice to appear as witness form with the courtand also with the affidavit of service form to show how the worker was served the papers.

Contact the worker 48 hours before the scheduled examination date and try to confirm if theworker will be attending. Ideally record the phone call. If the worker does not return your callsthen it is likely that the worker is up to one of two things. Either the worker is going to ignoregoing to the examination or the worker will show up at the examination without letting you knowhoping that you will not be prepared or hoping that you may have cancelled the examination.

Go to the place of the examination fully prepared. You might find that the worker will show upunexpectedly hoping that you would not show up or not be prepared. If the workers do not showup in 30 minutes then cancel the examination. At this point if you have a good paper trail to prove your efforts, then you can likely recover costs and move to the next step which is to get a

court order ordering the worker to appear for an examination.

File a small claims lawsuit for the costs of the examination and your lost time against the worker and the CAS agency itself.

Step #4.5

Apply for a motion to the court to have the worker ordered to appear for a hearing (see samplecourt motion). Be prepared to argue the matter in court as the CAS will not like having itsworker examined under Oath.

Step #5

Schedule a date and time with the worker and the verbatim reporting service for the examination.After the examination has been completed the witness will be required to be paid for attendance.Cash or certified cheque is best. It is best to make a cheque payable to the CAS agency so thatthe workers will not personally benefit.

During any of the steps above, should the CAS attempt to obtain any further court Orders by wayof motion while you are in the process of requesting that materials be tested, then inform thecourt at the hearing that any further court matters should be delayed until the evidence before thecourt from the workers has been properly examined. Under the principles of fundamental justice, the court is compelled to ensure that a hearing is as fair as possible. Allowing you toexamine the materials from CAS workers before the matter is heard by the court could be arguedthat this is part of ensuring a fair hearing and part of the process to ensure that the highest qualityevidence is brought before the court.

Questioning the witness at the examinationThe most important component of a good examination is the line of questions to be used for thewitness during the examination under Oath. In most cases, people use their own lawyers toquestion the witness just as if they were on the stand in a trial. Lawyers, generally have a good




understanding of the questioning process to best get the information from the witness. However,the witness can be questioned by yourself or someone you specifically request to question thewitness rather then a lawyer. This will help to reduce the cost of the examination by eliminatingthe cost of a lawyer. It is not who is doing the questioning but the quality of the questioning process. It must be remember that the line of questioning must be limited to evidence which is

either contained in the affidavit of the witness or is relevant to information relating to the case before the court which the witness would have direct knowledge of. For example, the experienceand qualifications of the CAS worker can be questioned during the examination as this would beconsidered relevant to their involvement in your family’s case.

It is most important to have questions prepared well ahead of line and that these questions be putinto writing and grouped together in topics. .Good questions in an appropriate sequence willexpose incompetence of workers and reveal misinformation and lies which many workersattempt to do while under examination.

Appendix

Notes: Readers should check currency of all court related documents to ensure that they obtainthe latest documents.

Appendix AForm 34B – Summons to appear as a witness for examination outside of court. For Ontario, thisform can also be downloaded at:http://www.ontariocourtforms.on.ca/english/civil

Appendix BUnderstanding Examination for Discovery for Your Court Matter




Understanding Examination for Discovery

for Your Court Matter

Discovery is the pre-trial phase in a court case during which each party can use certain methodsto obtain information and facts and gather evidence about the case in preparation for trial. It isthe principal fact-finding method in the litigation process.

Almost all trial courts allow a wide scope for discovery, the theory being that all parties shouldgo to trial with as much knowledge as possible, and that the parties should not be able to keepsecrets from each other. This broad right can involve the discovery of any material relevant tothe case excepting privileged information that is privileged or information that is the work product of the lawyers for the other side.

In the real world, discovery is very different from what readers seen on television and in themovies where there is a surprise witness or a missing document is found. The real goal of discovery is to avoid surprises and for all parties to go to trial with as much information as possible. Not surprisingly, many cases will settle during the discovery phase as a result of what isdiscovered or from what one party may be fearful of being disclosed during a discovery.

In practice, the majority of civil cases settle after or during discovery. After discovery, both sidesusually are in agreement about the strength and weaknesses of their cases, which may lead to asettlement that eliminates the expense and risks of a trial. The use of discovery is sometimescriticized as favoring the wealthier side as one tactic is to make requests of information that areexpensive and time-consuming for the other side to fulfill.

Types of Discovery The most common types of discovery include:

Required Disclosures. Parties are required to disclose certain information regarding four kinds of core information without a discovery request that concerns witnesses,documents, damages, and insurance. Parties must also disclose information about anyexpert witnesses who may be used at trial to present evidence. Any report written by anexpert retained to give testimony must also be disclosed. Before trial, the parties mustdisclose witnesses who will be called at trial and those who may be called at trialincluding those witnesses who will be presented through depositions. In addition, the parties must disclose a list of exhibits that will be presented at trial and exhibits that may be presented at trial.

Depositions. A device by which one party asks oral questions of the other party or of awitness for the other party. The deposition is taken under oath outside of the courtroom,usually in one of the attorney's offices. The deposition is transcribed by a court reporter and a copy of the transcript is provided to both parties. The transcript of a deposition may be used as evidence at trial.




Written interrogatories. A set of written questions about the case submitted by one party to the other party, witness, or other person having information of interest whichmust be answered under oath, and the answers to which must be provided to therequesting party within a set period of time.

Production of documents and tangible things. A written request asking the other partyto produce specified documents or things relevant to the case. An early request to viewdocuments and other evidence allow for a viewing of evidence that might deteriorate over time. It will also prevent many instances of the disposing of such evidence.

Physical and mental examinations. A written request submitted to the other partyrequesting that a physical and/or mental examination be made of a party.

Requests for admission. Written statements of facts concerning the case that aresubmitted to the other party that the party is required to admit or deny. Statements thatare admitted will be treated by the court as having been established and need not be proven at trial.

All discovery requests must be reasonably complied with, answered, or objected to in the proper amount of time. If discovery requests are not answered or objected to, and sometimes if they areimproperly answered or an improper objection is made, the side requesting the discovery mayask the court to compel proper responses, including the production of the requested discovery.The court may assess sanctions against a party not responding properly to discovery requests.

Conducting Discovery Once an answer to a lawsuit is filed, the time for conducting discovery begins. The timing and methods for conducting discovery may vary from Province to Provinceand even from court to court. There are substantial and numerous rules governing discovery ineach case. Those interested in advancing their case through the use of the discovery processshould check with any legislation or court rules for conducting discovery. Although there is a

broad scope of what may be requested in discovery, there generally are deadlines which should be adhered to for requesting discovery and responding to discovery requests. It is very importantto be aware of and follow the deadlines because of the potentially serious consequences for non-compliance.

Discovery is conducted by sending written requests in a proscribed form to the opposing partyspecifically listing the type of discovery sought, the manner in which it will be obtained, and thetime for complying with the request. Check applicable legislation and local rules for the requiredform of these requests.

Each province rules will include versions of the following rules:

1. Written Interrogatories2. Demands for Inspection3. Requests for Admission4. Propounding Party (party making the discovery request)

o Format of the discovery request;o On whom the request should be served;o Which party retains custody of the original discovery request; and




o Filing requirement (most discovery is not required to be filed with the courtunless pertinent to a motion heard before the court).

5. Responding Partyo Format of written response;o Effect of failure to respond in timely fashion;o

Objections to the discovery request;6. o Verification (responding party must sign the responses under oath);o On whom the responses should be served; ando Filing requirement (most discovery is not required to be filed with the court

unless pertinent to a motion heard before the court).

Each province may have its own rules as to when a plaintiff and when a defendant may servenotice of taking a deposition that is initiated by serving notice on the other party in the requiredformat. The notice will indicate whose deposition will be taken, when it will be taken, and whereit will be taken. There will also be rules concerning compelling a person or party to be deposed

and steps to take to compel attendance at a deposition.

Each province may have its own rules as to the production of documents and tangible things. The party requesting the production must serve notice of the request in the required format. Thenotice will indicate which documents and things are to be produced, and when and where theyare to be produced. There will also be rules for steps to take to compel production.

It is a general rule that all parties involved in civil litigation, whether represented by an attorneyor not, should be civil to each other. One of the things encompassed within this requirement for civility is the accommodation of each other's schedules within reason and is particularlyimportant with discovery because of the tremendous amount of information being obtained and

exchanged. If either party reasonably requests to change a time for a deposition or the time for exchange of documents, the other party should be accommodating. If the other party seems tomake a practice of requesting changes, not complying with discovery requests, or only partiallycomplying, it might be time to go to court and request sanctions.

2010May28 - Examining CAS Workers Outside of Court

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